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Authority, Process and Method Jewish Law in Context A series edited by Neil S. Hecht Volume 1 JUDICIAL DEVIATION IN TALMUDIC LAW Governed by Men, Not by Rules Hanina Ben-Menahem Volume 2 AUTHORITY, PROCESS AND METHOD Studies in Jewish Law Edited by Hanina Ben-Menahem and Neil S. Hecht This volume is a joint project o f The Institute o f Jewish Law The Institute for Research in Jewish Law Boston University School of Law Faculty o f Law 765 Commonwealth Avenue The Hebrew University o f Jerusalem Boston, MA 02215 Mount Scopus, Jerusalem Publication No. 24 Publication No. 25 This book is part of a series. The publisher will accept continuation orders which may be cancelled at any time and which provide for automatic billing and shipping of each title in the series upon publication. Please write for details. Authority, Process and Method Studies in Jewish Law Edited by Hanina Ben-Menahem Faculty ofLaw The Hebrew University ofJerusalem and Neil S. Hecht Boston University School ofLaw Boston, Massachusetts Boca Raton London New York CRC Press is an imprint of the Taylor & Francis Group, an informa business First published 1998 by Harwood Academic Publishers Published 2018 by CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487-2742 © 1998 by Taylor & Francis Group, LLC CRC Press is an imprint of Taylor & Francis Group, an Informa business No claim to original U.S. Government works ISBN-13: 978-90-5702-552-5 (hbk) This book contains information obtained from authentic and highly regarded sources. Reasonable efforts have been made to publish reliable data and information, but the author and publisher cannot assume responsibility for the validity of all materials or the consequences of their use. The authors and publishers have attempted to trace the copyright holders of all material reproduced in this publication and apologize to copyright holders if permission to publish in this form has not been obtained. If any copyright material has not been acknowledged please write and let us know so we may rectify in any future reprint. Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmitted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. For permission to photocopy or use material electronically from this work, please access www. copyright.com (http://www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that have been granted a photocopy license by the CCC, a separate system ofpayment has been arranged. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the CRC Press Web site at http://www.crcpress.com British Library Cataloguing in Publication Data Authority, process and method : studies in Jewish law. - (Jewish law in context; v. 2) 1. Jewish law I. Ben-Menahem, Hanina II. Hecht, Neil S. 296.1'8 We express our appreciation to Beatrice, Jay and Judith Espovich through whose generosity this volume has been published in memory of The Honorable Norman Espovich Contents Acknowledgments ix Introduction xi 1 PRECEDENT IN JEWISH LAW 1 Zerah Warhaftig 2 THE JUDGE-AGENT ANALOGY IN THE TALMUD 33 Hanina Ben-Menahem 3 THE LEGAL STATUS OF THE RESPONSA LITERATURE 59 Berachyahu Lifshitz 4 THE LAW IS IN ACCORD WITH THE LATER AUTHORITY— Hilkhata Kebatrai : Historical Observations on a Legal Rule 101 Israel Ta-Shma 5 ON THE PLACE OF LOGIC (SVARA) IN MAIMONIDES’ CODE 129 Shimshon Ettinger 6 EVASION OF THE LAW IN THE TALMUD 171 Shmuel Shilo 7 INADVERTENT ADULTERY (SHGAGA) IN JEWISH LAW: MISTAKE OF LAW AND MISTAKE OF FACT 231 Moshe Drori Contributors 269 Acknowledgments The papers in this volume originally appeared in the following volumes of the Shenaton Ha-Mishpat Ha-Ivri, the annual of The Institute for Research in Jewish Law of The Hebrew University of Jerusalem: chapter 1, vols. 6-7 (1979-1980), pp. 105-132; chapter 2, vols. 9-10 (1982-1983), pp. 51-71; chapter 3, vols. 9-10, pp. 265-297; chapter 4, vols. 6-7, pp. 405-423; chapter 5, vols. 14-15 (1988-1989), pp. 1-30; chapter 6, vol. 8 (1981), pp. 309-355; and chapter 7, vol. 1 (1974), pp. 72-97. Chapters 1-6 were translated by Shmuel Wosner; chapter 7 was trans­ lated by Tzipora Brody. The translations were edited by Nessa Olshansky- Ashtar, who translated the postscript to chapter 4 and assisted us in the onerous task of preparing this volume for publication. Introduction Authority; Process and Method: Studies in Jewish Law, the second volume in the series Jewish Law in Context, brings to English-speaking readers a number of seminal articles originally published in Hebrew in Shenaton Ha-Mishpat Ha-Ivri, the annual of The Institute for Research in Jewish Law of The Hebrew University of Jerusalem. The authors were given an opportu­ nity to examine the translations and to update or amend their views; these articles therefore represent their latest positions on the subjects in question. The studies we have included have a general jurisprudential dimension yet exemplify salient features of Jewish law. These criteria reflect the goals that motivate the entire series—to present Jewish law in its own context as well as in the context of contemporary jurisprudence. The series’ inaugural volume, for example,Judicial Deviation in Talmudic Law, explores the theory of adjudication in Jewish law, highlighting its divergence from the positivist model. The following comments do not constitute a summary of the articles. Rather, they point to thematic connections running through the entire volume, especially those arising from the relations between authority, process and method, and allude to some of the broader questions raised. Awareness of the distinctive nature of the decision-making process in Jewish law can contribute significantly to our understanding of its philosophy and historical development. The first four chapters analyze aspects of the decision-making process; each of the last three presents an analysis of a gen­ eral jurisprudential idea as it is conceived in Jewish law. The first article, by Warhaftig, is unique in that in addition to this analysis, it also provides a fas­ cinating perspective on the contemporary relevance of Jewish jurisprudence. It relates some of the dilemmas that confronted the architects of the legal institutions of the State of Israel—among them, Warhaftig—with respect to the question of whether, and how, these institutions should reflect the position of Jewish law on fundamental jurisprudential issues. One such institution is the rabbinical court; the role of contemporary rab­ binical courts in the ongoing formulation of Jewish law is reflected in the chapter by Drori, discussed below. The history of the responsa literature, briefly addressed by Warhaftig in explaining the decision to publish the Xli INTRODUCTION rulings of the rabbinical courts, is explored in greater detail by Lifshitz, who analyzes that genre in chapter 3. Another of the legal institutions, the merits of which were much debated, is the doctrine of binding precedent, the main focus of Warhaftig’s article. Warhaftig argues that not only is binding precedent not recognized by Jewish law, it is fundamentally at odds with the notion of decision-making under­ lying Jewish law. While Jewish legal thinking places great weight on the decision-making process, examination reveals that although the importance of judges’ being informed by the relevant prior considerations and policies is emphasized, their deliberations and conduct in deciding particular cases are not restricted. They are to exercise judgment independently, basing their deci­ sions on the facts of the cases before them and on the law as they understand it. It is thus the absence of the doctrine of binding precedent, rather than, as might be expected, its endorsement, which attests to the respect accorded the decision-making process in Jewish law. Further, it would appear that to a great extent the perennial vitality of that process can be attributed to the rejection of binding precedent. Indeed, the very concept of binding precedent is problematic. We are all familiar with the notion that previous cases may be distinguished in a variety of ways. Yet, if a precedent can be ignored by a judge who chooses to distin­ guish it, in what sense is it binding? Recent studies have suggested that the importance of the doctrine of binding precedent lies in cases where the judge chooses to follow a prior decision, because the court, by citing the doctrine, is able to present its decision as necessitated by pre-existing legal decisions, thereby minimizing criticism and resistance from the losing party. On this understanding, then, the doctrine of binding precedent is construed as a fic­ tion intended to bolster the court’s authority. That Jewish law does not subscribe to the doctrine of binding precedent is particularly significant from this perspective. Apparently, the fact that judges attain their position by dint of their personal moral stature and status as guardians of a valued tradition, and function not only as adjudicators but also as esteemed teachers and communal leaders, obviates the need for jurists to resort to the rhetorical device of binding precedent to advance the authori­ ty of the legal system. The second chapter, by Ben-Menahem, analyzes the status of the judge vis-à-vis the parties and society at large, and the basis of judicial authority.

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